The question involved in this case is as to the proper construction of the following statute: “Revision, ‘§ 4347 (2705). Every person who commits the crime of adultery shall be punished by imprisonment in the peni*339tentiary not more than three years, or by fine not exceeding three hundred dollars and imprisonment in the county jail not exceeding one year; and when the crime is committed between parties, only one of whom is married, both are guilty of adultery and shall he punished accordingly. No prosecution for adultery can be commenced but on the complaint of the husband or luife.” This question is not only res integra, but it is sui generis, and so far as we have been able to extend our investigations, it has no parallel in the common or statute law, and is, therefore, purely an original question, to be decided without the aid of precedent.
1. Criminal Law: statutous offense. Adultery, though in England cognizable criminally under the ecclesiastical law, was not indictable at the common law, and is not therefore punishable in this country, where we have no established religion, except it is made so by statute. Bishop on Crim. Law, § 46; 2 Id., 9; The State v. Moore, 1 Swan (Tenn.), 136. It is, hence, very competent for the legislature to prescribe not only the penalty for the offense, but to limit the circumstances under which a guilty party may be prosecuted; and no presumption arises of an intention to render any person liable to a prosecution, except those who are clearly within the provisions of the statute.
2. - Declarative statute: common law offense. If, on the other hand, a statute was simply declarative or reenacting a common law offense, and annexed limitá-tions as to the persons to be prosecuted, or the _ _ x ¶ ' manner oi prosecution under it. then it would x \ be necessary for a person claiming exemption from its penalties to show himself clearly within its limitations.
3. - Prosecution: statute construed. Under the ecclesiastical law, adultery is the voluntary sexual intercourse of a married person with a person other than the husband, or wife; if such other person • ' •*- is unmarried, the offense is, as to such other, ’ , , ’ ’ fornication, and not adultery. But our statute *340has extended, the meaning of the offense of adultery, and declared that “when the crime is committed between par* ties, only one of whom is married, both are guilty of adultery, and shall be punished accordingly.” Our statute also provides that “ no prosecution for adultery can be commenced but on the complaint of the husband or wife.'1' "Was this provision incorporated in the statute simply to protect the partner or family from the public scandal attending the prosecution for the ' offense, or was it also in view of the fact that the penalty could not be visited upon the guilty party of such marriage, without, at the same time, in almost an equal degree, visiting it upon the innocent partner? Or, did the legislature regard the offense as primarily against the family, as tending to impose on the marriage a spurious issue, and as incidental only in its consequences to the public, and therefore left it with the innocent partner to demand the enforcement of the penalty or not, at pleasure? Adultery may be committed in three ways, namely: by a married man having sexual intercourse with an unmarried woman; by a married woman having the same with an unmarried man, and by either having the like intercourse with a married person of the opposite sex, other than such person’s husband or wife. 2 Bishop on Crim. Law, § 10 b. How, suppose the offense, under our statute, was committed in the last named manner, to wit: by a married person having sexual intercourse with a married person of the opposite sex, other than such person’s husband or wife, could it be contended, with any show of reason, or in any legitimate view of the purpose and object of the limitation of our statute, that the partner; husband or wife, of one of the guilty parties might institute a prosecution against the other guilty party, even against the solemn protestations of the husband or wife of such party ? If so, what becomes of the protection which the statute was evidently designed to afford to' the innocent *341Husband or wife and family of such party ? If the view taken by the District Court be correct, then the instruction, as given in this case, would also be given in such case, and would be in substance as follows:
The husband could not be considered as making a complaint against the seducer of his wife for adultery with his wife, without making the complaint against the wife as well. Such view of the case and the statute seems so palpably erroneous on the bare presentation, as to require no further illustration. But, it may be claimed, that the statute refers to the prosecution simply, where it says that “ no prosecution for adultery can be commenced but on the complaint of the husband or wife; ” and, that when the prosecution is commenced, although aimed at only one of the guilty parties, since it is an offense which requires two to commit, and both of which guilty parties may be joined in the prosecution, therefore such prosecution being commenced by the husband or wife, may, at the pleasure of the State be made to include both. This view, it seems to us, gives an undue prominence to the word “ prosecution,” and leaves without due consideration the more definite words, “ the husband or wife.” What can be intended by the use of the definite article “the,” preceding husband or wife, unless it refers to the husband or wife of the party against whom the prosecution is commenced. The object, of the limitation of the statute, in our view, was to exempt the party from prosecution, unless the husband or wife of such party should commence the prosecution against him or her.
We have not overlooked the fact, that under our statute the crime of adultery may be committed by an unmarried person, who would, therefore, have' neither husband or wife to commence the prosecution. Whether the limitation in the last clause of the statute has any application whatever to such person, or if it has, what application, is a *342question, which this case does not present, and it is not, therefore, necessary or proper for us to decide.
4. _In_ dictment. The indictment contains the averment that the prosecution was commenced upon the complaint of the wife, and this averment was traversed by the defendant’s pieaj ail<} the proof shows that this prosecution against this defendant was not so commenced. The motion to discharge the defendant was also made, based upon the same showing, and overruled, and the same question was made in the instructions asked and refused, and also in the motion for a new trial. Without now determining as to which is the' proper method whereby to take advantage of such fact, we are clear that neither the averment in the indictment, nor the indorsement on its back, are conclusive against the defendant, but he may show the real fact, and when shown, may have the benefit of it; and as the defendant in this case has availed himself of it, at every stage of the proceedings, he has at least done so at the proper stage. The judgment of the District Court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.